The civil law option
F E Noronha argues in favour of a uniform civil code for the country
Our legal culture is empirical in nature with the emphasis on skill rather
than on theory and concepts. Our traditional law syllabi teach provisions,
cases and procedure. Science and Commerce graduates can take law.
Background knowledge of literature, philosophy and social sciences is not
considered essential and examples are given of great names who came to law
from a science background.
Of late, the need for a Humanities background has been felt by starting
five-year courses and law schools and academics of juridical sciences.
At a professional level, the law teacher is the least regarded and least
paid. No wonder some of our top jurists are working abroad. On the other
hand, at the International level the 'opinion of jurists' is taken very
seriously and is itself a source of law.
In many countries, laws are drafted at universities and traditionally the
most eminent law teacher becomes the law minister.
In our country, laws are hurriedly drafted by law departments. Ill drafted
statutes are the clearest reflection of an ill equipped legal culture.
Poor concepts, mechanical definitions which explain nothing, disorganised
arrangement of subject matter, clerical language and pedestrian presentation
are the notorious features of many of our civil statutes dealing with
momentous topics such as consumer protection, environment, rent control and
so on.
The state policy directs us to have a civil code.
For the last 58 years, public attention has been on the adjective "uniform"
which precedes these words in article 44 of the constitution.
Now the purpose of a code is not merely uniformity but more importantly to
organise the law. Article 44 has to be viewed not as a directive to have
monolithic law but as a direction to adopt the civil law system.
One consequence of a civil code which I have not, so far, heard of, or read
about, is that we will have to abandon the precedent based system and switch
to the conceptual system of 'a priori' codified law.
If we are serious about a civil code we have to improve our legal culture.
In this regard M P Jain writes, "A lawyer without history is only a mason or
a mechanic. With it, he might become an architect."
If we are to transit from the casuistic world of precedent to the world of
codified law we have to reinvent our legal propensities. Conceptual science
has to replace the performing art of persuasion.
The bulk of routine legal matter namely property, contracts, tenancy,
succession and matrimonial law is civil in nature. To practice in all this
vast area of law in our country one needs a massive library. But in a civil
code all these areas are covered concisely within say 2000 sections.
Civil codes also cover more fundamental matters such as sources of law,
interpretation of laws, conflict of laws (private international law),
citizenship, natural and legal persons.
When civil codes appeared in Europe, Jeremy Bentham (1748-1832), England's
first jurist, was critical of the Common Law and advocated codification.
An Indian Civil Code was always the official policy of the British law
makers who could legislate only to a limited extent in their parent country
because the legal establishment viewed civil codes with hostility.
In India, however, they were free to implement Benthamite ideals.
Starting from 1833, four law commissions were appointed for the purpose of
having nothing less than a Civil Code for India, of which the various Acts
enacted were to be the chapters.
The statement of objects and reasons of the Easements Act, 1882,
unequivocally opens with the statement in its very first line: "This Bill is
intended to form part of the Indian Civil Code..."
The idea of an Indian Civil Code was sought to be implemented in 1948 when
the Hindu 'Code' (not really a code) was enacted. It was meant to be a
prelude to the General Civil Code for all Indians.
In a civil law system the civil code will be paramount. As per Napolean's
advice, it will have to be revised every 30 years. Judicial discretion will
be substantially reduced and naturally the stature of the lawyers and
judges.
The code will be, not what we make of it, but what it really is. Judicial
law making will be less than interstitial.
Naturally the civil code will have to reflect the contemporary temper of the
nation as disclosed in the extant constitution, particularly its fundamental
rights, which are really civil in nature and its often defined basic
features.
The constitution has given a successful democracy, but only a good civil
code can give an orderly society in which democracy can thrive.
Lastly, civil law is not an option but a constitutional directive and it
will come not by sterile wrangling but by studious preparation. (ENDS)
The writer is an advocate and author of the book 'Understanding the Common
Civil Code: An Introduction to Civil Law'. The views expressed are those of
the writer.
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